Supreme Court: Cessation of state pension payments to prisoners unconstitutional

About this case:

• Judgment:
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Finding that the statutory provision which disqualified prisoners from receiving such a benefit was contrary to the separation of powers principle, Mr Justice John MacMenamin stated that the prohibition on payment amounted to an additional non-judicial punishment which contravened Articles 34 and 38 of the Constitution.

Background

The appellant, “PC”, was born in 1940, and the Court heard that he spent most of his life living and working in the State. He made sufficient contributions to render him eligible for what was then known as the contributory old age pension, now called the State Pension Contributory (SPC). On attaining the age of 66 years in 2006, he commenced receiving the SPC.

In 2011, PC was convicted on several counts relating to serious offences committed against a family member. He was subsequently sentenced to a lengthy term of imprisonment, with a release date anticipated in 2020.

Pursuant to s.249 (1) of the Social Welfare (Consolidation) Act 2005, the Minister for Social Protection ceased payment of the SPC to PC from the date of his detention in prison.

Section 249(1) of the Social Welfare (Consolidation) Act 2005 provides:

“Except where regulations otherwise provide, a person shall be disqualified for receiving any benefit under Part 2 (including any increase of benefit) for any period during which that person:

(a) is absent from the State, or

(b) is undergoing penal servitude, imprisonment or detention in legal custody …” (Emphasis added)

“Benefits” under part (2) are defined as including: disability benefit, maternity benefit, health & social benefit, adoptive benefit, unemployment benefit, occupational injuries benefit, carer’s benefit, old age (contributory) pension, retirement pension, invalidity pension, widow(er) (contributory) pension, orphans (contributory) allowance, bereavement grants, and widowed parent grant.

PC challenged the constitutionality of this provision.

In April 2016, PC’s claim was dismissed in the High Court. Thereafter leave was granted to appeal directly to the Supreme Court from the High Court pursuant to Article 34.5.4 of the Constitution.

The Supreme Court

Justice MacMenamin considered the two main constitutional issues of the appeal: the extent of PC’s entitlement to the SPC; and the argument that the effect of the section provides for a “non-judicial” sanction or punishment.

Much of the legal argument on entitlement focused on the question of property rights, and Justice MacMenamin described the nature of the entitlement as a qualified entitlement derived from statute.

After a lengthy consideration of the case-law, Justice MacMenamin found that the most relevant cases were Cox v. Ireland 2 I.R. 503 and Lovett v. Minister for Education, Ireland & The Attorney General 1 I.L.R.M. 89 (The High Court, Kelly J., 7th July, 1996).

The significance of this entitlement had to be considered in the light of non-judicial punishment

Justice MacMenamin was satisfied that the impugned provision was originally intended to be punitive in purpose; while its purpose was to avoid unjust enrichment, it’s true effect was punitive, retributive, indiscriminate, and disproportionate.

No such financial penalty was mandatorily imposed on prisoners with independent means; thus, applying the criteria discussed in Enright v. Ireland 2 I.R. 321, the provision was a penalty; PC was placed under a significant “disability”, or more accurately, a detriment notably not imposed by a court.

As such, the prohibition on the payment of the SPC to sentenced persons constituted an additional punishment.

Separation of Powers

Article 34 of the Constitution provides that justice shall be administered in courts established by law, by judges appointed under the Constitution. Article 38 provides that no person shall be tried on any criminal charge, save in due course of law. But this punishment was not imposed by a court; as such, the provision contravened Articles 34 and 38 of the Constitution.

The effect of s.249 (1) was to result in an impermissible legislative incursion into the judicial function by making provision for the imposition of an extra penalty upon an individual in receipt of SPC, without permitting the fact of this to be considered by a sentencing court in exercising its discretion as to the appropriate penalty to be imposed upon a person convicted of an offence that attracts a sentence of imprisonment.

The manner in which the extra penalty operates failed to safeguard PC’s right to have justice administered in courts established by law, by judges appointed in the manner provided by the Constitution – consequently contravening the principles of separation of powers, and administration of justice, fundamental to the Constitution.

In all the circumstances, Justice MacMenamin held that the Minister must be found to have acted ultra vires, if the necessarily implied constitutional limitation of jurisdiction invades the judicial domain.

Conclusion

Justice MacMenamin held that the State could not operate a disqualification regime that applied only to convicted prisoners and, thereby, constituted an additional punishment not imposed by a court dealing with an offender.

Yet this should not necessarily have the result that prisoners receive the full payment of the relevant benefit while incarcerated.

Sections 6 to 9 of the Criminal Justice Act 1993 set out the statutory scheme for the making of compensation orders, which can be paid by instalments

As a consequence of the decision in this case, a sentencing court will now be able to consider future social welfare payments as a source of compensation for victims of crime.

However, Justice MacMenamin explained that the position in relation to persons such as PC currently serving a sentence was more complex, since their sentence was already finalised by the court.

Justice MacMenamin directed counsel to make submissions as to the appropriate remedy on the facts of PC’s case.